Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I am very pleased to be in the Seanad this afternoon to present the proposal of Government that the State opts into the EU, recast, reception conditions directive 2013 under the terms of Protocol 21, annexed to the EU treaties. Last Wednesday, the opt-in proposal was broadly welcomed and supported by the members of the Oireachtas Joint Committee on Justice and Equality.

Opting into this directive will align the supports that we provide to international protection applicants fully with EU norms and standards. It will be an important step. This is a progressive step. It reaffirms our commitment to continue to implement our programme of reforms to Ireland's international protection regime.Reforming the protection process began in 2014 with inviting Judge Bryan MacMahon and a group of experts to review our protection system, including supports for applicants. I want to acknowledge the role of Judge MacMahon, his interest in this issue and his continued active engagement in what is an important aspect of Irish life. He and his group made a total of 173 recommendations. The Government committed to undertake a process of reform that has seen positive actions across many Government Departments and services in order to improve what we do for people in need of protection and the way in which we do that job.

I want to take this opportunity to also acknowledge the hard work of Seanadóirí and the support I have received from them. I acknowledge, in particular, the work of Senator Aodhán Ó Ríordáin during his time as Minister of State in the Department of Justice and Equality. He is passionate about these issues, as are many in this House and that is why I am always anxious to continue to listen carefully to the views of Members of Seanad Éireann.

Like many Senators, I am concerned about the length of time that applicants spend in the protection process awaiting a final determination. In order to address this issue, the previous Government undertook the biggest single reform of our legislation by introducing a single applications procedure under the International Protection Act 2015. Ensuring that we have a simplified and efficient independent protection process is one part of our commitment to reform.

The other part is to ensure that we continue to improve the living conditions and the opportunities for regular family life for applicants and their families, in so far as possible, while they await a final decision on their application for protection. We have responded positively to the MacMahon recommendations to enable enhanced family living in our accommodation centres and in the range of supports and services that we provide to international protection applicants. That is not to say that everything is perfect or that there is an element of complacency here. We must continue to make progress. I want to acknowledge the work of my departmental colleague, the Minister of State, Deputy Stanton, who engages on these issues on a daily basis. Further, members of the MacMahon group continue to be actively involved in the process of reforming the direct provision system, including by playing a role, for example, in the standards development process which is currently well under way.

The Supreme Court gave its judgment in the NVH case on 30 May last and declared section 16(3)(b) of the International Protection Act, which prohibits access to employment without any temporal limit for applicants, to be unconstitutional. The Government did not interpret this decision narrowly by simply amending the provision prohibiting access to the labour market in the Act. Instead, it listened to the calls from Deputies and Senators, the MacMahon group and NGOs that Ireland should align its bespoke system with European norms and standards.

The Government decided that the State would give effect to the judgment by way of opting in to the European Union's recast reception conditions directive. The Government has chosen to be ambitious and to enhance and protect the rights of international protection applicants and their families. The directive not only provides a framework for effective access to the labour market but also reaches into many other areas which the Government feels it is timely to be validated by the European Commission in order to ensure that we do reach and comply with European standards.

In addition to labour market access, the directive also includes important provisions on children's rights, rights for unaccompanied minors, as well as in the areas of health care and education. The directive also defines the required material reception conditions for applicants. Participation in the directive will place the provision of these material reception conditions for applicants on a statutory basis underpinned by EU law for the first time. If approved by the Oireachtas, the State will be required to demonstrate its compliance with all of the provisions of the directive to the European Commission before it confirms our participation. This will be a rigorous process but it will also be a transparent one. I want to assure Seanadóirí that we will continue to make any changes required of us by the European Commission. My Department is leading an implementation group established by Government to oversee the opt-in procedure and the compliance process within the timeframe set out by the Commission, a period of four months.

The directive provides for access to the labour market for applicants who have not had a first-instance decision within nine months of making their application and provided that the delay cannot be attributed to the applicant.In determining the level of access to be provided to applicants the implementation group, membership of which is drawn from across a wide range of Departments and services, will be mindful of a number of important factors.

The State already has a functioning employment permits system for third country nationals, which we must be careful not to undermine, nor must we take any action that would be detrimental to our legal migration system. The court's judgment acknowledges our role in setting these parameters. However, we all recognise that the Supreme Court has adjudged that protection applicants have a constitutional right to seek employment, one which is not conferred on other third country nationals who are legally residing in the jurisdiction. While the court was also clear that this is not an unfettered right, the Government considers that it is appropriate to apply a balanced approach under the scope of the directive where the level of access required will be in excess of that provided under the employment permits system. Once the State's participation in the directive is confirmed, I intend to provide for access for eligible applicants by way of an immigration permission, which would exempt applicants from the employment permits system and the associated fee.

In determining the list of sectors of employment to which access will be granted, regard will be had to labour market gaps as well as the skill set of applicants and the expert advice of front-line Departments. We must also be cognisant of maintaining the integrity of the common travel area and the possible impact of the withdrawal of our nearest neighbour, the United Kingdom, from the European Union. The Government has agreed that eligible applicants will also have access to self-employment and eligible applicants may now qualify for further vocational training, which was previously unattainable. The operation of these arrangements will be reviewed after 12 months and we will be open to amendments, having reviewed its operation.

At the Supreme Court hearing of 30 November last, the State outlined its plans to the court to opt in to the directive, subject to Oireachtas approval, and the four-month process necessitated by the European Commission to confirm the opt-in following formal notification of our wish to be bound by the directive. We respectfully asked the court to adjourn the making of its final order until this process was complete. However, the court decided that the prohibition on international protection applicants accessing the labour market under the International Protection Act 2015 would be struck down on 9 February 2018. The participation of the State in the directive will not be confirmed by the court's deadline as we await the conclusion of the Oireachtas approval process, which is well under way, before we can begin the Commission mandated compliance procedure.

The decision of the court means that access to the labour market for applicants must now take place under a two-stage process. With the best will in the world, it simply will not be possible for us to have completed all of the procedures required to confirm our opt-in to the directive by 9 February. For this reason, the Government has today decided that a temporary interim solution will apply from 9 February until the date of entry into force of the directive, whereby applicants can access the workforce in two ways. The first entry point under the temporary solution is via the employment permits system of the Department of Business, Enterprise and Innovation. All applicants will be able to access this system on the same basis as other non-EEA nationals. In practical terms, this means applicants will be entitled to apply, or have their prospective employer apply, for an employment permit on their behalf to the Department of Business, Enterprise and Innovation in the sectors where the employment permit scheme applies.

In addition, to bring some clarity to the matter of self-employment I will use my discretionary powers to introduce an administrative scheme during this period to allow for access to self-employment for eligible applicants. This scheme will apply to applicants who have been nine months or more without a first instance decision and will broadly mirror the legislative access provisions to be put in place for access to self-employment once the State opts in to the recast EU reception conditions directive. This is important as I want a smooth and efficient transition into the measures giving effect by the directive in the coming months.

In tandem, intensive work is under way across government to provide for the implementation of the directive pending its formal entry into force. In making this process a success, I want to work with Members of both Houses, employers and all other stakeholders. A further information campaign will be launched nearer the time of entry into force of the directive to communicate the new and enhanced access to the workforce arrangements that will apply once we are participating in the directive. Senators may wish to assist in getting the message out to eligible applicants and I will be delighted to work with them in this regard.

Participation in the directive would be a very positive step in bringing our international protection system and supports for applicants more closely in line with EU norms and standards. There are some areas of the directive, particularly around health and education and State support for unaccompanied minors where we already apply more favourable provisions than would be required and these will be maintained. As I stated, the operation of all the arrangements we intend to implement to give effect to the directive will be implemented after a period of 12 months to ensure they are effective and working properly. I look forward to the debate and I will be pleased to engage further with the Seanad in the context of proceeding towards complying fully with the directive, which I expect will take place in June 2018.